The Mental Capacity Act 2005 which came into effect in October 2008 has overhauled the area of appointing and managing alternative decision makers who are empowered to act on behalf of another (P). This is an important area for practitioners advising families. Divorce is a time when the client is having to think about their financial future and make a new will. The family dynamics change and the choice of who they would like to act for them if they became incapable can be addressed by drafting a Lasting Power of Attorney (LPA). The changes brought about by the MCA 2005 are  radical and complex, for  registration of an LPA and causing confusion for even those experienced in this area..

The family solicitor may also  be the first port of call for the family of a former client who has become incapable.  The application  to the Court of Protection (COP) to appoint a deputy, formerly known as a receiver, to act on P’s behalf. has been changed. This book informs the reader how to select the best deputy from P’s relations and contacts, how to make the applications, deal with conflicts and how to act as a deputy or joint deputy if appointed by the COP. The family dependant on P’s income and investments can be given the route to quickly unlock the assets which P is no longer able to manage.

Fast easy access to the law and procedure in the COP and Office of the Public Guardian (OPG) are provided in this guide. Test driving the index it takes you straight  to sections dealing with the typical issues and queries arising in practice written in clear user friendly English. This is important as the procedure has become more formal and protracted. New forms have increased in number and length and the process is more expensive.  Martin Terrell has had to rewrite the guide completely since the second edition was published five years ago and brings the law up to date to 1st of April 2009. Practitioners are given a comprehensive run through of all the main areas they might need in practice

The phasing out of Enduring Powers of Attorney (EPAs) and their replacement with (LPAs) to delegate decision making for P in case  of future lack of capacity is simple to follow. The section points out the factors to consider when timing their registration, the scope of the power, how to fill out the forms and what to focus on.  The chapter gives enough information to advise testators when drafting a will about common problems which arise when LPAs are created  and after they become effective.

There is a section on selling P’s property which starts with a useful checklist and outlines when and how an application needs to be made to the court for selling and buying a property for P pointing out potential pitfalls. The extra measures needed to ensure compliance with the MCA 2005 are listed. Enough information to advise the family on selling P’s former home to fund residential care and how to deal with the conveyance is provided

The guide concentrates on the role of deputies who deal with an individual’s property and affairs an area the author is experienced in both as a solicitor and as a deputy. . Chapters 4 to 9, roughly one third of the book focuses on them. Most professionals would use this part of the book to advise the family of P once P had become incapable of making decisions and to make applications on their behalf. The role of deputy is onerous, time consuming and complicated, where there are large assets the family might ask the legal advisor to act as the deputy. The detailed information provided is enough to solve the problems that crop up when delegated decision making is required.   

The other type of deputy which has been created by the MCA 2005 is appointed to deal with welfare issues such as choice of care home or medical treatment, and likely to be a relative. They need less help and long term legal advice and it is understandable that the guide gives them less coverage

The application procedure for appointing a deputy the author describes as a long and painful one. Even a straightforward application would be beyond the stamina of non-professionals.  After explaining when a deputy is required and their powers the author provides a check list to help identify the qualities needed that would assist a family to decide who is suitable. The application procedure and check list for the large number of lengthy forms is set out.  Each step including fees, costs, notices and insurance premiums is placed in chronological order with answers for most the questions likely to be raised. Sufficient information is given to support relatives providing the prescribed information and comply with timetables.

Other applications handled by the COP are outlined. Substantial gifts, settlements and wills are given good coverage.  A useful section assists with the execution of draft statutory wills which must be approved by the COP, their safe custody and when they become effective.  

Factors to be taken into account when providing for P’s maintenance, how funds should be applied, the running of P’s savings and bank accounts and managing investments are set out clearly with an index which takes you straight to the information needed to make a decision

Although unlikely to cross most desks how to conduct litigation on behalf of a P lacking mental capacity, what to do if P is an incapable Trustee and what happens if P lives abroad or owns property abroad are covered in short chapters 

Terrell’s guide is simple to use and the print format easy to read. The relevant procedure, principles illustrated by cases, assumptions the COP applies, code of practice and practice directions are pulled together on the same page, making it easier than if they are in separate sections at the back of the book requiring cross referencing.

Practitioners updating themselves and those coming across the new legislation for the first time will benefit from the text which navigates them through this evolving area safely.

Family Law Week, September 2009